Back to Basics: AEDPA and Clearly Established Law (?)

Here is my favorite comment from the barrel over at Orin Kerr's post on this week's dp cases:

All Penry relief is collateral. If there is not something in Penry that is "clearly established," Penry has no meaning at all, since it is not a claim that can be asserted on direct review. Indeed, whatever you might "think" about the clarity of the law, the court has decided several penry cases under 2254. There is established law there. Maybe you agree with the variety of Supreme Court decisions to the contrary, but then you just don't really care about precedent and there's not much to say.

I wouldn't get too sidetracked about this "congress has no business" argument. That's just not the issue, and it would be a disservice to the majority to act like that is the holding.

The law here is close - but it's close on the question of what is clearly established. Yes, it is "confused," but not in the traditional sense that it is confused on the straight-up merits question.

People like Kent S. would like to have everyone believe that just because it is not clear what is clearly established, that this is sufficient ambiguity to bar relief. This is, of course, ridiculous. There's no logical limit if you are going to stack "clearlies." Does the law have to be clearly established, or does it have to be clear what is clearly established. How about clear about what is clear about what is clearly established.

The "mess" was all about what law was clearly established, so you can't circularly cite confusion as to what was clearly established as a reason for holding nothing is clearly established at all, if 2254(d)(1) is ever to mean anything.

Also, the Texas Court of Criminal Appeals is simply off the reservation. For those unfamiliar with the way they do business, it's a real eye-opener. I think the Fifth Circuit sometimes gets a bad rap because they're applying deference to a state court that already delivers the most lazy, cryptic criminal opinions in the country. All righteous anger about federal interference in state adjudication sounds truly absurd if you have state adjudications that lack any indicia of reliability.

AND HERE are some persuasive reasons why the dissent(s) are discombobulational:

[OK Comments: C.F.W., I don't understand this comment. So in your view, the Supreme Court's job is to follow statutes if and only if the Justices believe that Congress "has business" in passing the law? I suppose I'm not surprised that Roberts missed that.]

Roberts wrote a dissent, and knew how the AEDPA came about - from Lundgren in CA trying to work around 9th Circuit cases. The idea was to put a thumb on the scales of justice - in favor of death. A good federal courts professor would have given a C to a student who did not at least mention what is wrong (or questionable, and possibly unconstitutional) about the structure of the law - making the circuits and district courts irrelevant as creators of precedent.

cfw: how was it the "key point" in this case that "Congress has no business freezing the law as it was decided by a particular date by the USSCT"? This was pretty much a straightforward AEDPA case, whether you agree with AEDPA or not. In fact, I'm sure the majority would have gladly just ignored AEDPA if it could have, but so long as AEDPA is on the books and not ruled unconstitutional (which was certainly not at issue here), the Court has to abide by it. And so long as it has to abide by it, the majority opinion is awfully implausible.

The dissent is not persuasive unless it at least touches on the idea that telling judges what they can and cannot cite as precedent is unconstitutional (blurring lines between Article III and other parts of the US Const.). The dissent is materially incomplete, and the CJ knows it (from his days as an advocate - or assistant to advocates - in a DP case).

This may be getting just a bit cynical, but why doesn't congress just pass a law saying that only the Tennessee courts, or just pick any state, are the only courts from which precedent can be drawn? Then, of course, we'll pack the TN courts with Supreme Court level justices and "away we go" (Johnny lives on, or was that Jackie?).

New Blog and Crows Nest Lite

I will probably be adding this one to the Poliblog. It looks to be regularly irregular.

You gotta love how Doc B rings up another one...kashing!

Almost forgot, Howard and Lyle (most recent post here) should be interested in my most recent efforts by way of deferential review under AEDPA (my last post). Howard first noticed the Irons case, and Lyle wrote it up last year in May and followed that up with some more good stuff.

Deference is Hot

These are interesting because "deferential review" is one hot potato:

A. The petition for cert (pending, earlier post) in Varner v. Thomas (3d Circuit) presented these questions:

1. Where counsel’s action at trial is objectively reasonable, may the conviction nonetheless be reversed on the ground that counsel’s subjective thought process is found deficient?
(Answered in the affirmative by the United States Court of Appeals for the Third Circuit, in conflict with other circuits.)

2. Where a state court has clearly adjudicated the merits of an ineffective assistance of counsel claim, may a federal court avoid AEDPA deference and invoke de novo review as to any aspect of the claim that, in the federal court’s view, has not adequately been addressed in the state court’s legal analysis?

(Answered in the affirmative by the United States Court of Appeals for the Third Circuit.)

REASONS FOR GRANTING THE WRIT (verbatim)

I. The Circuits have split in constructing “objective” and “subjective” elements of the Strickland test. This Court should grant certiorari to make clear that an attorney’s subjective thought processes cannot trump an objectively reasonable rationale for his conduct.

II. This Court’s decisions in Weeks v. Angelone and Wiggins v. Smith have led to confusion concerning the nature of “deference” on habeas review. The Court should grant certiorari to make clear that review under § 2254(d) of the habeas act is of the state court’s ruling, not its reasoning.

The number of cases affected by this circuit conflict is unusually high, because ineffective assistance is perhaps the most frequently litigated issue in the field of criminal law. The impact is especially significant in federal habeas review of state convictions, where the subjective/ objective distinction affects application of all the special rules that have been created to accommodate federalism concerns: deference, evidentiary hearings, procedural default, and exhaustion. Even aside from such procedural matters, the difference between a subjective and an objective analysis of ineffectiveness claims is often outcome-determinative.

B. Eddleman v. McKee, No. 05-1493 (6th Cir. 12/14/2006) (6th Cir., 2006)
presents the question of what type of deference is owed on collateral review to a state court's harmless-error determination. David Eddleman was convicted of second-degree murder and a firearm offense in a Michigan state court. On direct review, the Michigan Court of Appeals affirmed his conviction, concluding that the trial court erred in admitting his coerced confession but that the error was harmless. Eddleman petitioned for a writ of habeas corpus in federal court. The district court granted the writ, and warden Ken McKee appealed.

Affirmed: holding "that, when a state court has found an error to be harmless, we should ask on collateral review whether the state court's harmless-error decision was contrary to, or an unreasonable application of, the clearly established federal rule that a trial error is harmless only if it is harmless beyond a reasonable doubt. Applying this standard of review to the case at hand, we hold that the Michigan Court of Appeals's harmless-error determination was an unreasonable application of the Supreme Court's decisions Chapman v. California, 386 U.S. 18 (1967), and Arizona v. Fulminante, 499 U.S. 279 (1991). "

C. Frantz v. Hazey, No. 05-16024 (9th Cir. 1/5/2007) (9th Cir., 2007)
Ordered that parties brief the following issues:
(1) (a) When a state court utilizes a legal test contrary to that endorsed by the Supreme Court, may we affirm the denial of federal habeas relief if the ultimate decision of the state court (but not its reasoning) is consistent with precedent of the Supreme Court? See Cooper-Smith v. Palmateer, 397 F.3d 1236 (9th Cir. 2005) (affirming denial of federal habeas relief where de novo review of an ineffective assistance of counsel claim showed that the conduct did not rise to the level of a constitutional violation); Williams v. Taylor, 529 U.S. 362, 406 (2000) ("A state-court decision will also be contrary to this Court's clearly established precedent if the state court . . . arrives at a result different from our precedent."); Hernandez v. Small, 282 F.3d 1132, 1140 (9th Cir. 2002) ("[T]he intricacies of the state court's analysis need not concern us; what matters is whether the decision the court reached was contrary to controlling federal law.").
(b) Or, is our review under the "contrary to" prong of 28 U.S.C. § 2254(d)(1) confined to the reasoning employed by the state court, necessitating a grant of federal habeas relief when the state court utilized reasoning contrary to precedent of the Supreme Court? See Van Lynn v. Farmon, 347 F.3d 735, 741 (9th Cir. 2003) ("[A] federal court may not avoid granting habeas relief by positing an alternative reason for the state court's decision that might have enabled the state court to reach the same result, where the record reveals that the state court did not base its decision on that alternative reason."); Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam) (noting that a state court need not even be aware of the Supreme Court's cases "so long as neither the reasoning nor the result of the state-court decision contradicts them").
(2) Does petitioner's claim amount to structural error under McKaskle v. Wiggins, 465 U.S. 168 (1984)? END

These also looked interesting:

Brewer v. Quarterman, No. 05-70056 (5th. Cir. 12/29/2006) (COA issues, IAC)

Wright v. Vaughn, No. 04-3457 (3rd Cir. 12/26/2006) (IAC fail to call witness)

Anderson v. Benik, No. 05-2323 (7th Cir. 12/20/2006)(exhaustion and proc default)

If not mistaken the Fifth Circuit has not been issuing many published decisions recently. I guess Nelson kept them pretty busy.

Playing Catch (up)

One of my picks from the SCOTUSblog list of Petitions to watch: (IAC/Deference)
Varner v. Thomas (3d Circuit) is here (pdf).

Certs Granted list from Friday here, (again, from SCOTUSblog and Lyle Denniston)

January Hearings List is here (guess from where?)

PS. I started a few new blogs that you can easily link to at top right, and will be moving some of the cool links that are more appropriately placed elsewhere to these new places, soon!

Poliblog is for Politics and Politicking.

The Brunswick is for Entertaining Local Stuff and Conservation (and the great American past-time, the big show, a.k.a. that other religion, "ball").

Tax Advisor is ... (your wild guess).

Circuit Trends in Habeas Corpus, AEDPA

When did you last admit to having made a mistake about something? Anything. That is why judicial review, and in particular, Habeas Corpus review, remains so extraordinary. It provides a searching and thorough reexamination in a matter of controversy and, where warranted, it requires the finding: judge, you made a mistake. To a judge this must be an excruciating moment, akin to punishment. Habeas writs are granted very infrequently, so that when they are granted that is news. Here are a few items of note recently published elsewhere that I happen to be collecting, and now make available to you, dear readers:

Killing Habeas: Maryland's Unique contribution to the history of Habeas here

President Abraham Lincoln suspended habeas corpus in Maryland on April 27, 1861, two weeks after the Confederate attack on the Union garrison at Fort Sumter. “Lincoln could look out his window at the White House and see Robert E. Lee’s plantation in Virginia,” Akhil Reed Amar, a professor at Yale Law School and the author of “America’s Constitution,” said. “He was also facing a rebellion of so-called Peace Democrats in Maryland, meaning there was a real chance that Washington would be surrounded and a real threat that the White House would be captured.” On Lincoln’s order, federal troops arrested Baltimore’s mayor and chief of police, as well as several members of the Maryland legislature, who were jailed so that they couldn’t vote to secede from the Union.

Relief Granted:

	Stewart v. Wolfenbarger, No. 04-2419 (6th Cir. 11/9/2006) (6th Cir., 2006) See previous post here.

A Question of Innocence:

	Rittenberry v. Morgan, No. 05-5606 (6th Cir. 11/9/2006) (6th Cir., 2006)

When does procedural default bar federal review? When is a state-court decision based on "independent and adequate state grounds"? Triggering these questions was Confrontation Clause ruling reviewed in Wright v. Quarterman, No. 05-70037 (5th. Cir. 11/17/2006) (5th. Cir., 2006). This case seems to say that you must make a contemporaneous Sixth Amendment objection together with a Hearsay objection under Texas Rules of Evidence in order to preserve Confrontation Clause grounds for federal habeas review. But I was under the impression that the Texas Rules of Evidence are grounded in the federal rules...or does that not matter? But what if the fundamental reasoning for having hearsay objections (and exceptions) was grounded in the Confrontation Clause itself? Can that not be sufficient?

Grant of Relief Affirmed in James v. Brigano, No. 05-4003 (6th Cir. 11/30/2006) (6th Cir., 2006) resolving a question of procedural default

(Ohio Court of Appeals' lengthy opinion denying James's motion to reopen does not frame its rejection of James's underlying claims as a failure to find prejudice or on procedural grounds, but instead rejects those claims on their merits. Therefore, because the Ohio Court of Appeals did not actually rely on the procedural bar in rejecting either of James's claims, those claims are not procedurally defaulted for habeas purposes)

James's other claim for habeas relief is that his waiver of appointed counsel before the state trial court was not made knowingly and intelligently. As the record makes clear, at no time did the state trial court judge ensure that James's waiver of appointed counsel was knowing and voluntary. At no time did the state trial judge explain to James the risks and dangers in proceeding pro se. And at no time did the state trial judge make an explicit finding that James's waiver was knowing and intelligent. Instead, the state trial judge appeared to accept, and the Ohio Court of Appeals explicitly accepted, the idea that James was attempting to delay trial and avoid the administration of justice when he tried to fire Stewart with his outbursts in front of prospective jurors and to the court after voir dire.

Neither the state trial judge nor the appeals court addressed the question of waiver, even though "courts [should] indulge every reasonable presumption against waiver of fundamental constitutional rights."Johnson v. Zerbst, 304 U.S. 458, 464 (1938)".

As the district court pointed out, under even the AEDPA standard, the finding that James knowingly and intelligently waived appointed counsel was a failure to apply clearly established Supreme Court precedent because of an unreasonable finding of fact.

Remanded, Writ Vacated on Non-retroactivity: Albrecht v. Horn, No. 04-9005 (3rd Cir. 11/21/2006) (3rd Cir., 2006)

See Previous Post here: St. Aubin v. Quarterman, No. 05-40277 (5th. Cir. 11/21/2006) (5th. Cir., 2006)

Affirmed Conditional Relief: Higgins v. Renico, No. 05-1564 (6th Cir. 11/20/2006) (6th Cir., 2006)

A PAIR OF INTERESTING 6th CIRCUIT HABEAS CASES GRANTING RELIEF LAST WEEK

Stewart v. Wolfenbarger, No. 04-2419 (6th Cir. 11/9/2006)
Petitioner raises two further claims of ineffective assistance of counsel: that O'Connell failed to file a proper notice of alibi witnesses, and that she failed to investigate Delshawn Williams as a potential witness. These two errors constitute deficient performance under Strickland's first prong. An assessment of the totality of the omitted evidence shows that the unprofessional errors of counsel were prejudicial. We consider these errors in turn***
The uncontested evidence in the record is that O'Connell failed to adequately investigate Simpson's statement, and she failed to adequately investigate Williams as suggested by Petitioner. In either case, it seems clear that O'Connell should have, at some point, contacted Williams, one of the individuals who lived in the house where Simpson purportedly had the conversation with Petitioner on April 22, 1996. This failure to investigate clearly constituted objectively deficient performance ***
We can see no strategic purpose in failing to investigate Williams as a potential favorable witness. As this Court stated: "Where counsel fails to investigate and interview promising witnesses, and therefore `ha[s] no reason to believe they would not be valuable in securing [defendant's] release,' counsel's inaction constitutes negligence, not trial strategy." Workman v. Tate, 957 F.2d 1339, 1345 (6th Cir. 1992) (quoting United States ex rel. Cosey v. Wolff, 727 F.2d 656, 658 n.3 (7th Cir. 1984)). Blackburn v. Foltz, 828 F.2d 1177, 1183 (6th Cir. 1987) ("Counsel did not make any attempt to investigate this known lead, nor did he even make a reasoned professional judgment that for some reason investigation was not necessary

Joseph v. Coyle, No. 05-3111 (6th Cir. 11/9/2006) (6th Cir., 2006)
AEDPA DEFERENCE: As the text of the statute makes clear, however, § 2254(d)(1)'s limits on habeas relief apply only if there is a state-court "adjudicat[ion] on the merits" of a given claim. For reasons we discuss at greater length in Part IV.C, Joseph's Brady claim was not "adjudicated on the merits in State court proceedings" and therefore is not governed by the strictures of § 2254(d)(1). Joseph's remaining claims were, however, "adjudicated on the merits" by the state courts, so § 2254(d)(1)'s limits apply. For each of these claims, the decision we review is that of "the last state court to issue a reasoned opinion on the issue." Payne v. Bell, 418 F.3d 644, 660 (6th Cir. 2005), cert. denied, ___ U.S. ___, 2006 WL 732193 (U.S. June 26, 2006) (No. 05-9829); see also, e.g., Schultz v. Page, 313 F.3d 1010, 1015 (7th Cir. 2002) ("[A] federal court reviewing a habeas petition should examine the decision of the last state court to rule on the merits of the issue."), cert. denied, 538 U.S. 1057 (2003); Franklin v. Johnson, 290 F.3d 1223, 1233 n.3 (9th Cir. 2002) ("This court . . . must look to the last reasoned decision of the state court as the basis of the state court's judgment."); Barrientes v. Johnson, 221 F.3d 741, 779 (5th Cir. 2000) ("When the last state adjudication of the claim is silent or ambiguous, the federal court should look through to the last clear state decision on the matter." (internal quotation marks omitted)), cert. dismissed, 531 U.S. 1134 (2001). ***
STRICKLAND ISSUE: A number of recent cases have emphasized that defense attorneys have a constitutional duty to conduct adequate factual investigations. See, e.g., Rompilla v. Beard, 545 U.S. 374 (2005); Wiggins v. Smith, 539 U.S. 510 (2003). Yet it can hardly be doubted that defense lawyers have a constitutional obligation to investigate and understand the law as well. See, e.g., Williams, 529 U.S. at 395 (noting that counsel "failed to conduct an investigation . . . not because of any strategic calculation but because they incorrectly thought that state law barred access to such records."); Strickland, 466 U.S. at 690 ("[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable . . . ." (emphasis added)); Smith v. Dretke, 417 F.3d 438, 442-43 (5th Cir. 2005) ("[Defense counsel] failed to achieve a rudimentary understanding of the well-settled law of self-defense in Texas. By doing so, he neglected the central issue in his client's case. . . . This misunderstanding could have been corrected with minimal legal research." (footnote omitted)) ***
RE: NO AEDPA DEFERENCE WHEN NEWLY DISCOVERED EVIDENCE PRESENTED FOR FIRST TIME DURING FEDERAL HABEAS Joseph's current Brady claim is not the same as the one he brought before the state courts: he now relies on a different mix of suppressed evidence that includes some items discovered only during federal habeas proceedings. Thus, Joseph argues, his Brady claim was not "adjudicated on the merits in State court proceedings," and AEDPA's strict standard of review does not apply. We agree. Williams v. Coyle, 260 F.3d 684 (6th Cir. 2001), cert. denied, 536 U.S. 947 (2002), we reviewed a Brady claim based on evidence disclosed during federal habeas proceedings "under pre-AEDPA standards because no state court reviewed the merits of that claim." Id. at 706; Monroe v. Angelone, 323 F.3d 286, 297-98 (4th Cir. 2003) (collecting cases); Holland v. Jackson, 542 U.S. 649, 653 (2004) (noting that "[w]here new evidence is admitted, some Courts of Appeals have conducted de novo review on the theory that there is no relevant state-court determination to which one could defer" and "[a]ssuming . . . that this analysis is correct and that it applies where . . . the evidence does not support a new claim but merely buttresses a previously rejected one"). Because AEDPA's standard of review does not apply here, we review the district court's factual findings for clear error, while whether a Brady violation occurred is a mixed question of law and fact that we review de novo. Williams, 260 F.3d at 706.